IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
1stCr. Bail Application No. S-485of 2020.
Applicant: Abdul MananKamboh,
Through Mr. Habibullah G. Ghouri, Advocate.
Complainant: Hadi Bux Shaikh,
Through M/s Abdul Ghaffar Shaikh and Barrister Akhtar Hussain Advocates.
State: Through Mr. Muhammad Noonari, D.P.G.
Date of hearing: 11-01-2021
O R D E R
Zulfiqar Ali Sangi, J.- Through instant criminal bail application, applicant Abdul MananKamboh seeks post arrest bail in Crime No.108/2020, registered at Police-station A-SectionShahdadkot, for offence under sections 354, 509, 506/2, 337-A(i) and 377-B P.P.C.Earlier,his bail application was rejected by learnedI-Additional Sessions Judge, Shahdadkot, vide order dated 17.09.2020.
2. Facts of the case as per FIR are that, the daughter of complainant, namely, Saba aged about 16/17 years was studying in class-XII and due to closure of school she gets tuition in “Adnan Coaching Centre”. On the day of incident daughter of the complainant went for tuition and his relative namely, Ayaz Hussain Shaikh also came to his house for gathering, when complainant was going to see-of him till outside the gate of his house, at 12:15 p.m., they both saw from the outside of the gate at 15/20 paces near the house of Sardar Khan, accused Abdul Mananwas assaulting his daughter's modesty by holding the hands at her body and forcefully bite on right cheek of his daughter, she was crying and trying to save herself, the complainant party also tried to release her by raising "Hakals" and run towards the accused; they tried to catch the accused; seeing them the accused Abdul Manan took out the pistol from fold of his Shalwar and pointed straight on the complainant party and said that if they will come near to him he will kill them and went towards the eastern side. They saw bite mark was on the right cheek of Saba; she was in fear and was crying. She informed the complainant that accused Abdul MananKamboh opened her “Hijab” with bad intention and put his hands and made sexual harassment so also forcibly bite on her cheek. Thereafter,the complainant went to police-station for registration of F.I.R against the accused and the same was registered bearing Crime No.108 of 2020.
3. Learned counsel for the applicant submits that the applicant is innocent and has falsely been implicated in this case by the complainant with malafide intention; that the story unfolded in the F.I.R appears to be managed and concocted one as the incident took place during broad day hours at 12-15 p.m but no independent person of the locality has been cited as witness; that the crime weapon/pistol was not recoveredfrom the possession of applicant, though he was arrested on the same day of the incident; that Section 377-B P.P.C is not mentioned in the FIR and the same was added by the investigation officer in the challan-sheet and the same is not applicable; that the offence under Section 354 P.P.C is punishable upto two years, Section 509 is punishable up to three years and Section 337-A(i) P.P.C is punishable upto one year and are bailable, as such the offence do not fall within the prohibitory clause of Section 497 Cr.P.C, as such bail in like cases is rule while refusal is an exception; that the applicant is student and there is no complaint against him throughout his life as such there is no exception to refuse the bail; that medical evidence/certificate shows that there are human teeth bite marks on right cheek of P.W Saba, yet the same cannot connect and identify the applicant/accused; that since the investigation is complete, the case has been challaned and the applicant is no more required for further investigation, hence the case requires further inquiry under Section 497(2) Cr.P.C. He prays for grant of post-arrest bail.
4. Conversely, learned counsel for the complainant and learned D.P.G for the State vehemently opposed the grant of bail. They submitted that there was no malafide on the part of the complainant; that the applicant/accused had fearlessly committed heinous offence in a broad day light by biting the innocent victim young girl aged about 16/17 years on her right cheek, who was returning back from her Tuition Centre. They further submit that the medical certificate has fully supported and corroborated the version of prosecution; that due to such shameful act, the victim girl had confined herself in her house and the impact of such act also lies upon the society; that the accused is involved in heinous offence thus he did not deserve any relief; that the punishment provided for section 377-B P.P.C is not less than 14 years and the same may be extended upto to 20 years and with fine not less than one million as such offence falls within the prohibitory clause of Section 497 Cr.P.C. They have prayed that the bail application of the applicant may bedismissed.
5. I have heard the learned counsel for the parties and perused the material available on the record with their able assistance.
6. The incident took place on 24-08-2020 at 12-15 p.m. and the FIR was registered promptly on the same day at 12-40 p.m.The victim girl was examined by the medical officer on the same day at 1-30 p.m. which itself suggest that there was no chance to concoctthefalse story or to consult with someone else for falsely implicating the applicant. Applicant is nominated in the FIR with specific role of putting hands on the body of the girl aged about 16/17 years and put force on her for sexual abuse so also bite her on right cheek in the street while she was returning from tuition center to her home. The allegations made in the FIR are supported by the witnesses and the victim in their statements under Section 161 Cr.P.C recorded during the investigation. The victim girl was examined by the medical officer who found the Human bite mark on her right cheek and kind of weapon is also mentioned in the certificate as Human Teeth while duration of injury observed as fresh. There is no suggestion on behalf of the applicant that he was involved on the basis of some enmity or ill-willwith the complainant party.
7. Though in the FIR section 377-B P.P.C was not added but from the contents of FIR the same is applicable, however, the investigation officer after conducting the investigation has added the Section 377-B PPC in the charge-sheet prepared under section 173 Cr.P.C. Contention of learned counsel for the applicant that Section 377-B P.P.C is not applicable in the present case has no force, as in the FIR it is very much clear that accused also made sexual harassment while putting his hands at the body of victim and biting on her right cheek and she was found by the complainant under harassment. Section 377-B P.P.C provides the punishment for the offence, however the definition of the offence is provided in Section 377-A P.P.C. For sake of convenience both Sections are reproduced as under:-
377-A. Sexual abuse.___ Whoever employs, uses, forces, persuades, induces, entices, or coerces any person to engage in, or assist any other person to engage in fondling, stroking, caressing, exhibitionism, voyeurism or any obscene or sexually explicit conduct or simulation of such conduct either independently or in conjunction with other acts, with or without consent where age of person is less than eighteen years, is said to commit the offence of sexual abuse.
377-B. Punishment.___ Whoever commits the offence of sexual abuse shall be punished with imprisonment of either description for a term which [shall not be less than fourteen years and may extend up to twenty years and with fine which shall not be less than one million rupees]).
8. It is observed that the offences of like nature are heinous relating to high moral turpitude and are increasing day by day in our country, therefore, there is need to discourage these offences.It is settled principle of law that the bail plea is to be decided on the basis of material available on record tentatively and the deeper appreciation of evidence is not permissible under the law. It is further observed that applicant had indeed committed a most heinous offence and there could be no redemption or compensation for the victim because she would have to live with the worst scars that one could imagine.
9. From the tentative assessment of material available on record as has been discussed above there appears sufficient grounds to believe that the applicant is connected with the commission of offence which carry punishable for not less than 14 years and up to 20 years and the same fall within the ambit of prohibitory clause of section 497 Cr.P.C, disentitling the applicant from the concession of bail. Thus, based on the particular facts and the circumstance of the present case instant bail application is dismissed.
10. The observation made hereinabove are tentative in nature and shall not prejudice case of either party at the trial.
JUDGE